Planning For Your Pets: Pennsylvania’s Stance on Pets and the Resultant Impact on Estate Planning

by Kristin Noonan

People often refer to pets as members of the family.  I am known to do this myself.  If my mom hints about grandchildren, I remind her that she has the sweetest, goofiest, most adorable granddog on earth.  However, Pennsylvania courts, like my mother, do not agree that my dog, Mimo, should be given the same treatment as a grandchild, no matter how much I love him.  Under Pennsylvania law, pets are considered property.

In 2002, the Pennsylvania Superior Court decided the case of DeSanctis v. Pritchard.  Following their separation, DeSanctis and Pritchard made an agreement, granting DeSanctis the right to visit their dog, Barney, the second weekend of each month.  This arrangement worked well until Pritchard moved and DeSanctis could no longer see Barney.  DeSanctis filed suit claiming breach of the agreement.  The decision that followed created what is now known as the “Barney Rule.”  Under this rule, Pennsylvania courts refuse to enforce custodial visitation or shared custody of pets. Instead, they consider pets to be personal property.

The Barney Rule not only affects divorce decrees, as in DeSanctis v. Pritchard but also estate plans. Unlike other personal property in your estates, like jewelry and furniture, if your pets outlive you, they will need food, shelter, and care.  Although you cannot leave money directly to your pets, you can make sure your pets will be well cared for, and you can do so in a number of ways.

A pet can be left to someone named in a will, just as personal property is bequeathed.  Those who select this method of caring for a pet posthumously, often also leave the beneficiary a sum of money in recognition of the costs that go along with pet ownership.   One drawback of using a will to provide for a pet is that a will must be probated.  Having a will can create a lapse between the testator’s death and the transfer of “property,” in this case, the pet.  Further, a will cannot create binding instructions for the care of the pet and cannot be enforced if you are still living, but unable to continue to care for your pet.
A pet trust solves these shortcomings and can be executed in one of two ways.  A testamentary trust creates a pet trust as part of a will, meaning the pet trust does not go into effect until the death of the testator.  An inter vivos trust, on the other hand, creates a pet trust that takes effect upon the grantor’s incapacity or inability to care for the pet, for example, upon admittance to a nursing home.  The force and effect of the pet trust will continue until the death of the pet for which it was created.  As with any trust, the pet trust must be funded and a trustee named.

A pet protection agreement is similar to a pet trust but without the need for an attorney.  Like a pet trust, the protection agreement can be enforced during the life of the owner and after his death.  Unlike a pet trust, a pet protection agreement does not require funds to be created.

For those who do not have friends or family willing or able to take responsibility for a pet upon their death or incapacity, the Pennsylvania SPCA (PSPCA) has developed the Guardian Surrender Program.  This program requires a copy of estate planning documentation evidencing a minimum bequest of $2,500.00 per pet to the PSPCA.  Upon the owner’s death, the PSPCA will then try to find a new home that meets the needs of the pet.

Despite Pennsylvania’s seemingly harsh stance on pets as personal property, these are four ways that you can ensure that your pets will continue to be well cared for and loved when you are no longer able to look after them.

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